Delhi Transport Corporation vs Nihal Singh
2010 Latest Caselaw 2341 Del

                    *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C) 3210/2004

%                                                 Date of decision: 3rd May, 2010

DELHI TRANSPORT CORPORATION                                      ..... PETITIONER
                  Through: None.

                                         Versus
NIHAL SINGH                                               ..... RESPONDENT
                              Through:      Mr. Pratap Shankar & Mr. Swetank
                                            Shantanu, Advocates.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                   yes

2.       To be referred to the reporter or not?            yes

3.       Whether the judgment should be reported           yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. DTC by this petition impugns the order dated 7th February, 2001 of the

Industrial Tribunal dismissing/rejecting the application of DTC under Section 33

(2)(b) of the Industrial Disputes Act. Notice of this petition was issued on 28th

July, 2004 on the contention of the counsel for DTC that the respondent workman

had also raised an industrial dispute under Section 10 of the I.D. Act qua the same

order of his dismissal/removal from service, of which approval was sought by

DTC in the application under Section 33 (2)(b) of the ID Act; the said industrial

dispute (vide order dated 18th October, 2003) had been answered against the

respondent workman and the punishment imposed by DTC of removal of the

respondent workman had been upheld; it was thus submitted that while the

Industrial Tribunal in the order impugned in this petition had refused to give

approval to the action of DTC of removal of respondent workman from service,

the Industrial Tribunal in the dispute raised by the respondent workman held the

action of DTC of removal of respondent workman to be valid. This Court while

issuing notice of the petition also stayed the operation of the order dated 7th

February, 2001. The said order has continued to remain in force. On 7th February,

2006 the application of the respondent workman under Section 17B of the ID Act

was allowed. DTC was directed to pay wages at the rate of last drawn wages from

7th February, 2001 till the end of February, 2004 and at the rate of minimum wages

from 1st March, 2004 onwards to the respondent workman. The respondent

workman has filed an undertaking to refund the amount received in excess of last

drawn wages in the event of this petition being decided in favour of DTC. On 17th

March, 2010 it was informed that the writ petition preferred by the respondent

workman against the award of the Industrial Tribunal in the industrial dispute

raised by him had been dismissed on 16th April, 2009. On 17th March, 2010 the

counsels were called upon to also address on the effect, if any, of the industrial

dispute having been decided against the respondent workman, on the present

petition. The counsels have been heard.

2. I will first take up the aspect of the conflicting orders in the proceedings

emanating under Section 33 (2)(b) and those emanating under Section 10 of the ID

Act.

3. The order of removal of the respondent workman from service was passed

on 4th December, 1992. Owing to the then pendency of an industrial dispute

between DTC and its workmen, approval of the order dated 4th December, 1992 of

removal of the respondent workman from service was sought by filing on 4th

December, 1992 itself an application under Section 33(2)(b). In the said

proceedings a preliminary issue as to the legality and validity of the domestic

inquiry preceding the order of removal of the respondent workman from service

was framed. The said preliminary issue was decided against DTC. DTC opted to

prove the misconduct, for the reason whereof the order of removal from service

was made, before the Industrial Tribunal. Finally the Industrial Tribunal vide order

dated 7th February, 2001 impugned in this petition dismissed the application under

Section 33(2)(b) of the ID Act.

4. It appears that the respondent workman also raised an industrial dispute

under Section 10 of the Act with respect to the order dated 4th December, 1992 of

his removal. Reference thereof was made by the appropriate Government to the

Industrial Tribunal on 31st October, 2001 i.e. nearly eight months after the

rejection of the application aforesaid under Section 33(2)(b) of the Act. The

reference in the said industrial dispute was answered vide award dated 18th

October, 2003 i.e. during the time when the present petition was pending. The

Industrial Tribunal has in the award dated 18th October, 2003 held that the charges

against the respondent workman were proved / established and the respondent

workman was not only guilty of remaining absent but was also showing lack of

interest and was negligent in performing his duties, which is a misconduct. The

Industrial Tribunal has in the said award noticed that the application under Section

33(2)(b), had been dismissed. It was however held that notwithstanding the

dismissal of application under Section 33(2)(b), the respondent workman was not

satisfied and not only raised the industrial dispute but had the same referred for

adjudication notwithstanding the dismissal of the application under Section 33

(2)(b) and persisted in the adjudication of the said industrial dispute. The

Industrial Tribunal thus held that it was left with no option but to adjudicate the

said dispute.

5. The respondent workman challenged the award dated 18th October, 2003 in

the industrial reference under Section 10 by filing W.P.(C) No.8201/2009 in this

Court. The said writ petition was dismissed vide order dated 16th April, 2009 as

barred by time/laches. The said order has attained finality.

6. What falls for consideration is whether the order in the industrial dispute

proceedings under Section 10, against the respondent workman attaining finality

has any legal impact on this pending challenge to the order under Section 33

(2)(b). The findings in the order in Section 33(2)(b) proceedings, under challenge

in this petition, are contrary to the findings in the proceedings under Section 10.

While in Section 33(2)(b) proceedings it has been held that the domestic inquiry

preceding dismissal was perverse and misconduct alleged had not been proved

before the Tribunal, in the Section 10 proceedings not only has it been held that

appropriate inquiry was conducted but also that DTC was justified in passing the

order of dismissal.

7. I have recently in DTC Vs. Rishi Prakash MANU/DE/0748/2010 dealt

with the said aspect. The contention there also was that as per the law laid down in

Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma

MANU/SC/0030/2002, upon dismissal/rejection of the application under Section

33(2)(b), the order of dismissal becomes ineffective from the date it was passed

and the workman would be deemed never to have been dismissed or discharged

and would remain in the service of the employer. A Division Bench of this Court

in Sh. Rajender Singh Vs. DTC 98 (2002) DLT 706 has also held that upon

rejection of an application under Section 33(2)(b), the workman is not required to

raise an industrial dispute for his reinstatement and is entitled to reinstatement

merely for the reason of rejection of application under Section 33(2)(b). Another

Single Judge of this Court in Delhi Transport Corporation Vs. Sh. Ramesh

Chander MANU/DE/1101/2009 held a writ petition challenging the award under

Section 10 of the Act in favour of the workman to be barred by res judicata for the

reason of the order of the Labour Court dismissing the application under Section

33(2)(b) of the Act and the said order having not been challenged by the DTC.

8. However, another Single Judge of this Court in Shri Trived Prakash Vs.

Delhi Transport Corporation MANU/DE/3004/2009 held that where the writ

petition of the workman against the award in a Section 10 proceeding in favour of

the employer has been dismissed, the challenge by the workman to the grant of

permission under Section 33(2)(b) cannot succeed. It was held that in a Section

33(2)(b) proceeding only prima facie view has to be taken whereas in a Section 10

proceeding, the Labour Court or Tribunal is under an obligation to examine all the

contentions raised by both the parties on the merits of the case in detail. Similarly,

the Supreme Court in Dharampal Vs. National Engineering Industries Ltd. AIR

2002 SC 510 held that in a proceeding under Section 33(2)(b) only a prima facie

view is to be taken and which ordinarily ought not to be interfered with in a writ

proceeding and the appropriate course for the workman is to invoke Section 10 to

work out his rights. Recently another Division Bench in Bilori Vs. DTC

MANU/DE/2218/2009 held that findings under Section 33(2)(b) cannot operate as

res judicata in a reference under Section 10. It was further found that the Division

Bench of this Court in Delhi Transport Corporation Vs. Ram Kumar

MANU/DE/0168/1981 examined in detail the question of proceedings under

Section 33(2)(b) and Section 10, arising from the same cause of action. It was

held that the scope of inquiry under Section 10 is much wider than the scope of

inquiry for according or refusing approval under Section 33(2)(b). It was further

held that what is done under Section 33(2)(b) is not adjudication.

9. In Rishi Prakash (supra) I thus reached a conclusion that an award or an

order in a proceeding under Section 10 would constitute res judicata in a

proceeding under Section 33(2)(b) of the Act.

10. Thus, following the aforesaid logic, the present petition challenging the

order under Section 33(2)(b) is entitled to succeed on this ground alone.

11. The counsel for the respondent workman has however invited attention to

Tata Iron and Steel Company Ltd. Vs. S.N. Modak (1965) II LLJ 128 (SC).

However the said judgment does not address the issue aforesaid. It is a judgment

only on the proposition that the disposal of the industrial dispute which

necessitated the filing of application under Section 33(2)(b) does not make the said

application infructuous. The said judgment thus does not convince me to hold

otherwise than as held in Rishi Prakash.

12. However, after the decision in Rishi Prakash, I have come across the

following passage in Engineering Laghu Udyog Employees' Union Vs. Judge,

Labour Court and Industrial Tribunal 2004 SCC (L&S) 974:

"13. When in terms of the proviso appended to clause (b) of sub-section (2) of Section 33 of the Act, an approval is sought for and is refused, the order of dismissal becomes void. If an approval is not obtained, still, the order of punishment cannot

be given effect to. It is, therefore, not correct to contend that the Tribunal in a reference under Section 10 of the Act, when passes an order recording a finding of misconduct, brings life into the dead. Unfortunately, the Court did not take notice of the binding decisions in Motipur Sugar Factory case and Firestone case."

Though on first blush it appears that the same covers the field and the

conclusion reached in Rishi Prakash is contrary to the said binding dicta of the

Supreme Court but I find that the said question did not fall for consideration in

that case. The appeal before the Supreme Court was against the judgment of the

High Court dismissing the writ petition of the workman against the award holding

that the workman was guilty of misconduct and order of his dismissal from

employment was justified. There was no Section 33(2)(b) proceeding in that case.

The contention however was that since the award found that no domestic inquiry

had been conducted and misconduct was permitted to be proved and proved before

the Labour Court, the order of dismissal from service should not relate back to the

date on which the same was made by the employer without domestic inquiry but

should be with effect from the date of the award. It was in that context that the

aforesaid observation came to be made. With all humility, I am unable to hold the

same to be a binding precedent, when the question did not fall for adjudication in

that case. The aforesaid passage also, thus does not make me take a different view

from that in Rishi Prakash.

13. Notwithstanding the aforesaid finding, it is deemed expedient to,

independently of the above, consider the challenge to the order dismissing the

application under Section 33(2)(b). The charge against the respondent workman

was of unauthorized absence from duty from 12th July, 1991 onwards. The

Tribunal found that the respondent workman had failed to appear before the

Inquiry Officer despite service of notice and the Inquiry Officer was therefore

justified in proceeding ex parte against him. Notwithstanding the same, Tribunal

held the inquiry to be perverse for the reason of the Inquiry Officer having not

noticed certain other facts.

14. The Courts have held that the scope of jurisdiction of the Tribunal under

Section 33(2)(b) is only to oversee the dismissal to ensure that no unfair labour

practice or victimization has been practiced. If the procedure of fair hearing has been

observed, and a prima facie case for dismissal is made out, the approval has to be

granted. The jurisdiction of the Tribunal / Labour Court under Section 33(2) cannot

be wider than this. Reference in this regard may be made to Lalla Ram Vs.

Management of DCM Chemical Works Ltd. AIR 1978 SC 1004 and Cholan

Roadways Limited Vs. G. Thirugnanasambandam AIR 2005 SC 570.

15. The Tribunal/Labour Court must not sit in appeal over the findings of the

Inquiry Officer. Where the Inquiry Officer, having considered all aspects of the case

has found the employee guilty of misconduct, the Industrial Tribunal could not re-

appreciate the evidence and refuse approval. All that can be examined by the

Tribunal is that opportunity was given to the worker concerned to establish his

innocence and there is a prima facie case made out against him on the basis of the

record of the domestic inquiry. The Tribunal is not to see whether on the weight of

evidence a different conclusion is possible. The Tribunal is not empowered to

review the decision of the management. The mere circumstance that the Tribunal

was inclined to arrive at a different conclusion of fact on its appreciation of the same

evidence will not entitle it to withhold the approval sought for by the management

for dismissal of the worker so long as the management's findings could not be shown

to be perverse or based on no evidence. The Tribunal is to look only to ensure that

there is no lack of bona fides and victimization on the part of the management. The

Tribunal can over-turn the findings handed over by the Inquiry Officer only if they

are perverse. A finding can be said to be perverse in case it is not supported by any

legal evidence. If a finding arrived at by the Inquiry Officer is such that no

reasonable person could have arrived at that finding on the material before him then

also the finding can be said to be perverse. If the finding is not a perverse one, in the

said sense, and if there is prima facie evidence to support the finding, the Tribunal

cannot refuse to grant approval to the order passed by the management. It is only on

finding the principles of natural justice to have been violated or bias by the Inquiry

Officer against the employee that the inquiry report is to be disregarded.

16. It is settled law that a finding on an application under Section 33(2)(b) is not

res judicata if a labour dispute under Section 10 is also raised. Reference in this

regard also may be made to Ram Kumar (supra), DTC Vs. Delhi Administration

MANU/DE/7595/2007 and Bilori (supra). Thus if the employer seeks approval

under Section 33(2)(b) of the Act and the same is granted, the same will not come in

the way of the workman raising an industrial dispute qua the termination and/or in

the way of the Labour Court in deciding afresh whether the termination of

employment is illegal or unjustified. If that be the position, an application under

Section 33(2)(b) cannot be decided as a labour dispute and the scope of inquiry under

section 33(2)(b) is much narrower.

17. All the aforesaid well settled principles have been given a go by in the

present case. Inspite of finding the domestic inquiry to be in accordance with the

principles of natural justice and sufficient opportunity having been given to the

respondent workman and the respondent workman having failed to appear, the

Industrial Tribunal proceeded to re-appraise the evidence and which is not

permissible in law.

18. Even the said re-appraisal of evidence and finding thereon is contrary to

law as now declared in DTC Vs. Sardar Singh AIR 2004 SC 4161. The Supreme

Court has held that when an employee absents from duty without sanctioned leave

it prima facie shows lack of interest in work and DTC can on the basis of the

record come to a conclusion about the employee being habitually negligent in

duties and having exhibited lack of interest in employer's work. It was held that

the employee is required to at least bring some material on record to show as to

how his absence was on the basis of sanctioned leave and as to how there was no

negligence. Habitual absence was a factor held to establish lack of interest in

work. It was further held that mere making of an application after or even before

absence from work does not in any way assist the employee concerned. It was held

that the requirement is of obtaining leave in advance. Thus what follows is that

once absence is established, it is for the workman to prove that such absence was

with permission or sanctioned.

19. In the present case the Tribunal held the inquiry to be perverse merely

because some leave applications submitted by the respondent workman to DTC

were found on record and which record was held to have been available to the

Inquiry Officer also. The Tribunal held that in the absence of evidence about the

fate of the leave application it could not be said that the respondent workman was

guilty of unauthorized absence. The said reasoning of the Tribunal is contrary to

the judgment in Sardar Singh (supra). The order dismissing the application under

Section 33(2)(b) can thus not be sustained on merits either.

20. The petition is, therefore, allowed. The order of the Tribunal impugned in

this petition in dismissing the application of the petitioner DTC under Section 33

(2)(b) is set aside/quashed. Axiomatically, permission under Section 33(2)(b) is

granted to the petitioner DTC.

The writ petition is allowed.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 3rd May, 2010 pp